Law 101

In December of 2000 the U.N. Convention against Transnational Organized Crime addressed and accepted signatures for the Protocol to Prevent, Suppress and Punish Trafficking in Persons. It was entered in force September 2003, and it is the first global legally binding instrument with an agreed definition on trafficking in persons. This was instrumental in the understanding of human trafficking as it was the first definition to be inclusive about forms of exploitation, did not state ethnicity and addressed movement. Before this protocol none of the definitions had ever included organ trafficking or the inclusion of forced non-sexual labor. It wasn’t until 1949 that internal human trafficking was included.Since 2000 there still have been many debates on the inclusivity of the definition and laws that countries adopt. Combating human trafficking is a complex policy area, as it intersects multiple high priorities for various countries including immigration, prostitution and fair trade. Nevertheless, it has become a global priority for nations and their intergovernmental organizations to face the issue.

Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs

The United States

The Victims of Trafficking and Violence Protection Act of 2000 (P.L. 106-386), the Trafficking Victims Protection Reauthorization Act of 2003 (H.R. 2620), the Trafficking Victims Protection Reauthorization Act of 2005 (H.R. 972), and the Trafficking Victims Protection Reauthorization Act of 2008 (H.R. 7311) provide the tools to combat trafficking in persons both worldwide and domestically. The Acts authorized the establishment of G/TIP and the President’s Interagency Task Force to Monitor and Combat Trafficking in Persons to assist in the coordination of anti-trafficking efforts.

The U.S. took an aggressive stance against human trafficking by enacting the Trafficking Victims Protection Act in 2000. The TVPA encompasses many of the terms used in the U.N. definition: recruitment, harboring, coercion and others. An important difference between the definitions is that the TVPA definition includes an understanding that when a victim is under the age of 18, consent is irrelevant. It is also important to understand that the definition includes both U.S. citizens as well as those from abroad, and it does not require movement. The TVPA standards do not include illegal adoptions, trading in human organs, prostitution and child pornography that are all included in the U.N. definition.

In addition to the TVPA, the U.S. Department of State has attempted to address global human trafficking in other ways. Since 2001, the Trafficking in Persons (TIP) Report has been published annually. The report includes complied data on various forms of international human trafficking, recent statistics, trends, and a four-tier country ranking system. The Department ranks each country based on their extent of government action to combat human trafficking, then on the actual size of the country’s problem. The ranking is also based on the government’s efforts to comply with the TVPA’s minimum standards for the elimination of human trafficking, which follow the aforementioned Palermo protocol. Tier 1 is the highest ranking, but it does not mean there is no problem in that country or that the country is doing enough. Instead it means that the government has acknowledged the issue has made efforts to address the problem. Each year the countries are ranked, and progress needs to be made for the country to stay at their status. Progress-based rankings are adjusted accordingly. The assessment is based on the laws and punishments defined by the TVPA, victim identification measures, government funding and partnerships with NGO’s to provide victims access to resources, victim protection services and the governmental measure to prevent human trafficking.

Tier 1: “Countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards” (TIP, 2014, pg. 43). Tier 2: “Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards” (TIP, 2014, pg. 43). Tier 2 Watch List: same as Tier 2, but the number of victims is significantly increasing, and the country is failing to provide evidence of increasing efforts. The last and final tier is Tier 3: “Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so” (TIP, 2014, pg. 43). The TIP report is important on the international stage for multiple reasons, for one it is one of the more extensive documents outlining trends, legal recourse and what little statistics there are, although its numbers are critiqued like others. The TIP also serves to build partnerships and networks of NGOs and individuals working against human trafficking. The TIP rankings are taken very seriously, and, in fact, the governments of Tier 3 nations may be subject to certain restrictions on their bilateral assistance as a result. The “U.S government may withhold or withdraw non-humanitarian assistance, non-trade-related foreign assistance…as well as assistance (except for humanitarian, trade-related, and certain development related assistance) from international financial institutions, such as the International Monetary Fund and the World Bank” (TIP, 2014, p. 44). The report clearly states, “no tier ranking is permanent. Every country, including the United States, can do more. All countries must maintain and increase efforts to combat human trafficking” (TIP, 2014, p. 43).

History of Human Trafficking International Law

Until the end of 2000 the term “trafficking” was not even defined in international law, for the same reason trafficking is difficult to define today. There was great debate over the end result of trafficking: it’s constitutive acts and their significance, the role of movement, as well as the differences and similarities between migrant smuggling and illegal migration.

Human trafficking is not a “new phenomenon,” and this is the same for the laws that surround and define it.

The first legal agreement was against white slavery in 1904 and sought to defeat the “criminal traffic” of women or girls that were exploited for “immoral purposes,” and create the International Agreement for the Suppression of White Slave Traffic. The 1910 International Convention followed this agreement for the Suppression of White Slave Traffic, however, since the language of the agreement only protected white women, the law was not suitable for general human trafficking crimes and was disregarded in 1927.

It was in the late 1920s that the League of Nations was created. Founded at the end of World War I, it was formed to work on multiple issues, though the primary focus was to prevent wars through collective security and disbarment and settle international disputes. Other issues were treaties, issues regarding labor conditions, global health, arms trade and human and drug trafficking. In 1921 at the Anti Human Trafficking Convention, the 1921 International Convention for the Suppression of Traffic in Women and Children was created, and was followed by the 1933 International Convention of the Suppression of the Traffic in Women of Full Age. Again, these laws privileged only one particular demographic and neglected to realize the full scope of the issue.

When the U.N. was created, treaties fell under its jurisdiction and continued to expand. In 1949 the U.N. adopted the Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others.Although the term traffic was not clearly defined, this was the first definition and legal recourse to be more broad and inclusive, despite that it was very much still focused on prostitution.

The issue of human trafficking did not go dormant over the next half century, however the evolution of the law did. It wasn’t until the early 1990s that the issue was brought to light again, but this time the victims were no longer white or from developed countries. Instead, they were non-white and from poorer, underdeveloped nations. During this time the HIV/AIDS epidemic brought attention to human trafficking, as the feminist organizations working on the abolition of prostitution viewed trafficking as a mode of continued infection.Although the main focus was still prostitution, other global criminal trends began to emerge, including the facilitated movement of migrants across borders for private profit. Multiple organizations and countries including the Council of Europe, the European Union, The U.S. Department of State and more set out to document their own definitions and laws.

In December of 2000 the U.N. Convention against Transnational Organized Crime addressed and accepted signatures for the Protocol to Prevent, Suppress and Punish Trafficking in Persons. It was entered in force September 2003, and it is the first global legally binding instrument with an agreed definition on trafficking in persons. This was instrumental in the understanding of human trafficking as it was the first definition to be inclusive about forms of exploitation, did not state ethnicity and addressed movement. Before this protocol none of the definitions had ever included organ trafficking or the inclusion of forced non-sexual labor. It wasn’t until 1949 that internal human trafficking was included.Since 2000 there still have been many debates on the inclusivity of the definition and laws that countries adopt. Combating human trafficking is a complex policy area, as it intersects multiple high priorities for various countries including immigration, prostitution and fair trade. Nevertheless, it has become a global priority for nations and their intergovernmental organizations to face the issue.

The EU

On July 19, 2002, the E.U. adopted the Framework Decision on the trafficking of human beings. Almost ten years later, on April 15, 2011, the dramatic continuous rise in the human trafficking industry caused the E.U. to revisit the framework, following the shift after the Lisbon Treaty. Post-Lisbon Treaty, the EU issued a Directive, which was even more powerful than the human trafficking framework. In fact, the Anti-Trafficking Directive is the first agreement between the Council and European parliament in the area of substantive criminal law since the Lisbon treaty. The E.U. now has the competence to establish certain criminal offenses and set minimum sentences to override national criminal laws, as human trafficking affects all of the member states and, more importantly, the movement between the member states. The Trafficking in Human Beings in Directive 2011/36 EU, Article 2 that is now followed by the E.U. states:

The recruitment, transportation, transfer, harboring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

A position of vulnerabilitymeans a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.

Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.

The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used.

When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offense of trafficking in human beings even if none of the means set forth in paragraph 1 has been used.

In Southeast Asia trafficking is predominantly forced labor, followed by sexual exploitation. The Asian Forum of Parliamentarians on Population and Development believes that there are such high numbers of people trafficked or in forced labor in Asia because many ASEAN countries are at the bottom of the globe’s supply chains for food, garments and technology. To provide some perspective on the issue and its severity, in the 2014 TIP report, the 10 Southeast Asian countries all fell into either Tier 2, Tier 2-Watch List and Tier 3 because of the lack of effort to combat human trafficking. Indonesia, the Philippines, Vietnam, and Brunei are all listed as Tier 2, while Cambodia, Laos, Burma, Timor-Lieste, and Thailand are all listed as Tier 2-Watch List. Both Thailand and Malaysia were downgraded from Tier 2-Watch List to Tier 3 last year. As stated above, these rankings are extremely important because human trafficking is an issue that the U.S., E.U. and other foreign donor countries and agencies are very serious about, and if countries’ rankings continue to drop they will lose funding. Many Southeast Asian nations have laws against trafficking that are actually quite comprehensive, however, they are not enforced strongly enough or at all.